As filed with the Securities and Exchange Commission on May 28, 1997
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
_______________
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
_______________
UNIPHASE CORPORATION
(Exact Name of Registrant as Specified in its Charter)
Delaware 94-2579683
(State or Other Jurisdiction of (I.R.S. Employer
Incorporation or Organization) Identification Number)
163 Baypointe Parkway
San Jose, California 95134
(408) 434-1800
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrant's Principal Executive Offices)
Kevin N. Kalkhoven
President and Chief Executive Officer
Uniphase Corporation
163 Baypointe Parkway
San Jose, California 95134
(408) 434-1800
(Name, Address, Including Zip Code, and Telephone Number, Including Area
Code, of Agent for Service)
_______________
Copies to:
Michael C. Phillips, Esq.
Justin L. Bastian, Esq.
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
(415) 813-5600
_______________
Approximate date of commencement of proposed sale to the public:
As soon as practicable after this Registration Statement becomes effective.
If any of the securities being registered on this form are to be offered
pursuant to dividend or interest reinvestment plans, please check the
following box.
If any of the securities being registered on this form are to be offered
on a delayed or continuous basis pursuant to Rule 415 under the Securities
Act of 1933, other than securities offered only in connection with dividend
or interest reinvestment plans, check the following box. _x_
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. ____________
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. ___________
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box.________________
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Maximum Maximum
Title of Each Class of Amount to Offering Aggregate Amount of
Price Offering
Securities to be be Per Share (2) Price(2) Registration
Registered Registered(1) Fee
Common Stock, 665,568 shares $46.6875 $31,073,706 $9,416.27
$.001 par value(1)
(1) Issued and outstanding shares of Common Stock to be sold by a
certain Selling Stockholder.
(2) Estimated solely for the purpose of computing the amount of the
registration fee, based on the average of the high and low prices for
the Common Stock as reported on the Nasdaq National Market on May 20,
1997, in accordance with Rule 457(c) promulgated under the Securities
Act of 1933.
The Registrant hereby amends this Registration Statement on such date or
dates as may be necessary to delay its effective date until the Registrant
shall file a further amendment which specifically states that this
Registration Statement shall thereafter become effective in accordance with
Section 8(a) of the Securities Act of 1933 or until the Registration
Statement shall become effective on such date as the Commission, acting
pursuant to said Section 8(a), may determine.
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with the
Securities and Exchange Commission. These securities may not be sold nor
may offers to buy be accepted prior to the time the registration statement
becomes effective. This prospectus supplement shall not constitute an offer
to sell or the solicitation of an offer to buy nor shall there be any sale
of these securities in any State in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such State.
SUBJECT TO COMPLETION, DATED MAY 28, 1997
SUBJECT TO COMPLETION
665,568 Shares
UNIPHASE CORPORATION
Common Stock
This Prospectus relates to the offer and sale from time to time by the
holder (the "Selling Stockholder") of up to 665,568 shares (the "Shares")
of Common Stock, par value $.001 per share (the "Common Stock") of Uniphase
Corporation (the "Company"). The Company is registering the Shares
pursuant to a Common Stock Purchase Agreement dated as of November 20, 1995
by and between the Company and the Selling Stockholder, to provide the
Selling Stockholder with freely tradable securities. The registration of
the Shares does not necessarily mean that any of the Shares will be offered
and sold by the holder thereof. See "Use of Proceeds" and "Registration
Rights."
The Common Stock is listed on the Nasdaq National Market ("Nasdaq") under
the symbol "UNPH." On May 27, 1997, the last reported sales price as
reported by Nasdaq was $55.75 per share. See "Price Range of Common
Stock."
See "Risk Factors" commencing on page 5 for a discussion of certain
factors that should be considered by prospective purchasers of the Common
Stock offered hereby.
_______________
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION, NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
_______________
The Selling Stockholder from time to time may offer and sell the Shares
held by them directly or through agents or broker-dealers on terms to be
determined at the time of sale. To the extent required, the names of any
agent or broker-dealer and applicable commissions or discounts and any
other required information with respect to any particular offer will be set
forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The Selling Stockholder reserves the right to accept or
reject, in whole or in part, any proposed purchase of the Shares to be made
directly or through agents.
The Company will not receive any of the proceeds from the sale of Shares
by the Selling Stockholder but has agreed to bear certain expenses of
registration of the Shares under Federal and state securities laws.
The Selling Stockholder and any agents or broker-dealers that participate
with the Selling Stockholder in the distribution of Shares may be deemed to
be "underwriters" within the meaning of the Securities Act of 1933, as
amended (the "Securities Act"), and any commissions received by them and
any profit on the resale of the Shares may be deemed to be underwriting
commissions or discounts under the Securities Act. See "Registration
Rights" for indemnification arrangements between the Company and the
Selling Stockholder.
The date of this Prospectus is , 1997
AVAILABLE INFORMATION
The Company is subject to the reporting requirements of the Exchange Act,
and in accordance therewith, files, annual and quarterly reports, proxy and
information statements and other information with the Securities and
Exchange Commission (the "Commission"). Such reports, proxy statements and
other information can be inspected and copied at the public reference
facilities maintained by the Commission at its office at Room 1034, 450
Fifth Street, N.W., Washington, D.C. 20549, and at the Commission's
regional offices at Northwestern Atrium Center, 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661 and 7 World Trade Center, Suite 1300,
New York, New York 10048. Copies of such materials can be obtained from the
public reference section of the Commission, 450 Fifth Street, N.W.,
Washington, D.C. 20549, at prescribed rates. The Commission maintains a
website (http://www.sec.gov) containing reports, proxy statements and other
information of registrants, including the Company, that file electronically
with the Commission. In addition, the Company's Common Stock is quoted on
the Nasdaq National Market and reports, proxy statements and other
information concerning the Company can be inspected at the National
Association of Securities Dealers, Inc., 9513 Key West Avenue, Rockville,
Maryland 20850.
This Prospectus constitutes a part of a Registration Statement on Form S-
3 (herein, together with all amendments, schedules and exhibits, referred
to as the "Registration Statement") filed by the Company with the
Commission under the Securities Act. This Prospectus does not contain all
of the information set forth in the Registration Statement and certain
parts are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
Common Stock offered hereby, reference is made to such Registration
Statement. Statements contained in this Prospectus as to the contents of
any contract or other document referred to are not necessarily complete,
and in each instance, reference is made to the copy of such contract or
other document filed as an exhibit or incorporated by reference to the
Registration Statement of which this Prospectus forms a part, each such
statement being qualified in all respects by such reference.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents heretofore filed by the Company with the
Commission (File No. 0-22874) pursuant to the Exchange Act are incorporated
herein by reference:
(1) the Company's Annual Report on Form 10-K for the fiscal year ended
June 30, 1996;
(2) the description of the Company's Common Stock contained in the
Company's Registration Statement on Form 8-A filed with the Commission on
November 15, 1993;
(3) the Company's Quarterly Reports on Form 10-Q for the fiscal quarters
ended September 30 and December 31, 1996, and March 31, 1997; and
(4) the Company's Current Report on Form 8-K dated March 25, 1997, and the
Company's Current Report on 8K-A dated May 27, 1997.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act after
the date of this Prospectus and prior to the termination of the offering of
the Common Stock hereunder shall be deemed to be incorporated by reference
herein and to be a part hereof from the date of the filing of such reports
and documents. The Company hereby undertakes to provide without charge to
each person, including any beneficial owner, to whom a copy of this
Prospectus is delivered, upon written or oral request of such person a copy
of any or all of the foregoing documents incorporated herein by reference
(exclusive of exhibits, unless such exhibits are specifically incorporated
by reference into such documents). Requests for such documents should be
submitted in writing to the Corporate Secretary at the corporate
headquarters of the Company at 163 Baypointe Parkway, San Jose, California
95134 or by telephone at (408) 434-1800.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document that also is
or is deemed to be incorporated by reference herein modified or supersedes
such statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of the
Registration Statement or this Prospectus.
The statements contained in this Prospectus that are not purely
historical are forward-looking statements within the meaning of Section 27A
of the Securities Act of 1933 and Section 21E of the Securities Exchange
Act of 1934, including statements regarding the Company's expectations,
hopes, beliefs, intentions or strategies regarding the future. Actual
results could differ from those projected in any forward-looking statements
for the reasons detailed in other sections of this "Risk Factors" portion
of this Prospectus. The forward-looking statements are made as of the date
of this Prospectus and the Company assumes no obligation to update the
forward-looking statements, or to update the reasons why actual results
could differ from those projected in the forward-looking statements.
THE COMPANY
Uniphase Corporation ("Uniphase" or the "Company") is an optoelectronics
company that designs, develops, manufactures and markets laser subsystems,
laser-based semiconductor wafer defect examination and analysis equipment
and fiber optic telecommunications equipment products. Optoelectronics is
a technology that extends the speed and capacity of conventional electronic
solutions by addressing many of the constraints of the electron with the
particle of light, the photon. A common source of the photon in
optoelectronics is the laser. By combining electronics, photonics and
software, optoelectronics has enabled new technologies such as CD-ROMs and
fiber optic communication, and has created new solutions for existing
markets.
Since its founding, Uniphase has shipped over one million lasers and has
become a leading supplier of laser subsystems for OEMs in a variety of
markets, including CATV, long haul telecommunications, semiconductor wafer
inspection, biotechnology, and graphics and printing markets. The Company
focuses on selling its laser subsystems to such customers at the design-in
phase of a product, creating the potential for recurring sales throughout a
product's life.
The Company's predecessor was incorporated in California in 1979 under
the name "Uniphase Corporation." The Company was incorporated in California
in 1984 under the name "Uniphase Holding, Corporation," and changed its
name to Uniphase Corporation in 1987 as part of a reorganization in which
it succeeded to the assets, liabilities and business operations of its
predecessor. The Company reincorporated in Delaware in October 1993. Unless
the context otherwise requires, the terms "Uniphase" and the "Company"
refer to Uniphase Corporation, a Delaware corporation, its California
predecessors and its subsidiaries. The Company's principal executive
offices are located at 163 Baypointe Parkway, San Jose, California 95134
and its telephone number is (408) 434-1800.
RISK FACTORS
In evaluating the Company's business, prospective investors should
carefully consider the following factors in addition to the other
information presented in this Prospectus and in the documents incorporated
by reference herein.
Management of Growth; UTP Fibreoptics and ULE Acquisition
The Company has experienced recent growth through increased levels of
operations in its existing businesses, the acquisition of UTP in May 1995
and the acquisition of ULE in March 1997. The Company is devoting
significant resources to develop new solid state lasers for OEM customers,
to improve products and increase market penetration of its Ultrapointe
Systems and to increase its penetration of the CATV and telecommunications
industries. In addition, the Company is now increasing its marketing,
customer support and administrative functions in order to support an
increased level of operations primarily from sales of its
telecommunications equipment products. No assurance can be given that the
Company will be successful in creating this infrastructure or that any
increase in the level of such operations will justify the increased expense
levels associated with these businesses.
In May 1996, the Company acquired UTP Fibreoptics. As a result of
acquiring UTP Fibreoptics, the Company has entered the local
telecommunications and data communications market in which it had no
previous experience, and has expanded its employee base. The success of the
UTP Fibreoptics acquisition will be dependent on the Company's ability to
integrate UTP Fibreoptics into its existing operations as a division of
UTP. UTP's ability to manage UTP Fibreoptics will be complicated by the
geographical distance between UTP's facilities in Bloomfield, Connecticut
and Chalfont, Pennsylvania and UTP Fibreoptics's locations in the United
Kingdom and in Batavia, Illinois. There can be no assurance that the
operations of UTP Fibreoptics can be successfully integrated into UTP or
that such integration will not strain the Company's available management,
manufacturing, financial and other resources.
In March 1997, the Company acquired ULE. As a result of acquiring ULE,
the Company has gained access to a proven semiconductor based laser
application for use in telecommunications. The success of the ULE
acquisition will be dependent upon the Company's ability to integrate ULE
980nm lasers and future products used in erbium doped fiber amplifiers
(EDFA) and to many major telecommunication equipment manufacturers. There
can be no assurance that the ULE operations can be successfully integrated
into UTP or that such integration will not strain the Company's available
management, manufacturing, financial and other resources.
The Company also made capital expenditures in fiscal 1996 to acquire
certain properties in San Jose, California totaling 109,000 square feet,
which included land, buildings and improvements for an aggregate purchase
price of approximately $11.0 million and continues to invest in property,
plant and equipment needed for its business requirements, including adding
to manufacturing capacity throughout the Company. Any failure to utilize
these areas in an efficient manner could have a material adverse effect on
the Company.
The Company currently has no commitments with respect to any future
acquisitions. The Company, however, frequently evaluates the strategic
opportunities available to it and may in the future pursue acquisitions of
additional complementary products, technologies or businesses. Such
acquisitions by the Company may result in the diversion of management's
attention from the day-to-day operations of the Company's business and may
include numerous other risks, including difficulties in the integration of
the operations and products, integration and retention of personnel of the
acquired companies and certain financial risks. Further acquisitions by the
Company may result in dilutive issuances of equity securities, the
incurrence of additional debt, reduction of existing cash balances,
amortization expenses related to goodwill and other intangible assets and
other charges to operations that may materially adversely affect the
Company's business, financial condition or operating results.
Cyclicality of Semiconductor Industry
The Company's Ultrapointe Systems and a portion of its laser subsystems
businesses depend upon capital expenditures by manufacturers of
semiconductor devices, including manufacturers that are opening new or
expanding existing fabrication facilities, which, in turn, depend upon the
current and anticipated market demand for semiconductor devices and the
products utilizing such devices. The semiconductor industry is highly
cyclical, and historically has experienced periods of oversupply, resulting
in significantly reduced demand for capital equipment. The semiconductor
industry is currently experiencing a downturn which has led many
semiconductor manufacturers to delay or cancel capital expenditures.
Certain of the Company's customers have delayed or canceled purchase of the
Company's Ultrapointe Systems. There can be no assurance that the Company's
operating results will not be materially and adversely affected by these
factors. Furthermore, there can be no assurance that the semiconductor
industry will not experience further downturns or slowdowns in the future,
which may materially and adversely affect the Company's business and
operating results.
Gallium Arsenide
Gallium Arsenide, referred to as GaAs, is a semiconductor material that
has an electron mobility that is up to five times faster than silicon. As
a result, it is possible to design GaAs circuits that operate at
significantly higher frequencies than silicon circuits. At similar
frequencies, GaAs circuits will produce higher signal strength (gain) and
lower background interference (noise) than silicon circuits, permitting the
transmission and reception of information over longer distances. GaAs
circuits can also be designed to consume less power and operate more
efficiently at lower voltages than silicon circuits.
The fabrication of integrated circuits, particularly GaAs devices such as
those sold by ULE is a highly complex and precise process. Minute
impurities, difficulties in the fabrication process, defects in the masks
used to print circuits on a wafer, wafer breakage or other factors can
cause a substantial percentage of wafers to be rejected or numerous die on
each wafer to be nonfunctional. ULE has in the past and may be in the
future experience lower than expected production yields, which could delay
product shipments and adversely affect gross margins, and there can be no
assurance that ULE will be able to maintain acceptable yields in the
future. Because the majority of ULE manufacturing costs are relatively
fixed, manufacturing yields are critical to the results of operations. To
the extent ULE does not achieve acceptable manufacturing yields or
experiences product shipment delays, its business, operating results and
financial condition could be materially and adversely affected.
Risks from Customer Concentration
A relatively limited number of OEM customers historically have accounted
for a substantial portion of UTP's (including ULE) net sales. UTP's sales
to any single customer are also subject to significant variability from
quarter to quarter. Such fluctuations could have a material adverse effect
on both UTP and the Company's business, operating results or financial
condition. The Company expects that sales of UTP products to a limited
number of customers will continue to account for a high percentage of the
net sales for the foreseeable future. Moreover, there can be no assurance
that UTP's current customers will continue to place orders or that UTP will
be able to obtain new orders from new customers.
Declining Market for Gas Lasers; Development and Other Risks Relating to
Solid State Laser Technologies
To date, a substantial portion of the Company's revenue has been derived
from sales of gas laser subsystems. The market for gas lasers is mature and
is expected to decline as customers transition from conventional lasers,
including gas, to solid state lasers, which are currently expected to be
the primary commercial laser technology in the future. In response to this
transition, the Company has devoted substantial resources to developing
solid state laser products and has introduced its initial solid state
products. To date, sales of the Company's solid state laser products have
been limited and primarily for customer evaluation purposes. Solid state
laser products are still evolving, and there can be no assurance that the
Company's solid state laser products will be successfully designed into
customers' products or achieve commercial sales volumes. The Company
believes that a number of companies are further advanced than the Company
in their development efforts for solid state lasers and are competing with
evaluation units for many of the same design-in opportunities than the
Company is pursuing. It is anticipated that the average selling price of
solid state lasers may be significantly less in certain applications than
the gas laser products the Company is currently selling in these markets.
If the Company is unable to successfully make this transition from gas to
solid state lasers, its business, operating results and financial condition
will be materially and adversely affected. The Company further believes it
will be necessary to continue to reduce the cost of manufacturing and to
broaden the wavelengths provided by its laser products. There can be no
assurance that the Company will successfully develop new solid state laser
products, or that any solid state laser products will achieve market
acceptance or not be rendered obsolete or uncompetitive by products of
other companies.
Variability and Uncertainty of Quarterly Operating Results
The Company has experienced and expects to continue to experience
significant fluctuations in its quarterly results. The Company believes
that fluctuations in quarterly results may cause the market price of its
Common Stock to fluctuate, perhaps substantially. Factors which have had an
influence on and may continue to influence the Company's operating results
in a particular quarter include the timing of the receipt of orders from
major customers, product mix, competitive pricing pressures, the relative
proportions of domestic and international sales, costs associated with the
acquisition or disposition of businesses, products or technologies, the
Company's ability to design, manufacture, and ship products on a cost
effective and timely basis, the delay between incurrence of expenses to
further develop marketing and service capabilities and realization of
benefits from such improved capabilities, the announcement and introduction
of cost effective new products by the Company and by its competitors, and
expenses associated with any intellectual property litigation. In addition,
the Company's sales will often reflect orders shipped in the same quarter
that they are received. Moreover, customers may cancel or reschedule
shipments, and production difficulties could delay shipments. The timing of
sales of the Company's Ultrapointe Systems may result in substantial
fluctuations in quarterly operating results due to the substantially higher
per unit price of these products relative to the Company's other products.
In addition, the Company sells its telecommunications equipment products to
OEMs who typically order in large quantities and therefore the timing of
such sales may significantly affect the Company's quarterly results. The
timing of such OEM sales can be affected by factors beyond the Company's
control, including demand for the OEM's products and manufacturing issues
experienced by OEMs. In this regard, the Company has experienced a
temporary rescheduling of orders by OEM telecommunications customers. As a
result of the above factors, the Company's results of operations are
subject to significant variability from quarter to quarter.
There can be no assurance that other acquisitions or dispositions of
businesses, products or technologies by the Company in the future will not
result in substantial charges or other expenses that may cause fluctuations
in the Company's quarterly operating results.
The Company's operating results in a particular quarter may also be
affected by the acquisition or disposition of other businesses, products or
technologies by the Company. For example, in the fourth quarter of fiscal
1996, the Company incurred charges totaling $7.5 million for acquired in-
process research and development related to the acquisition of UTP
Fibreoptics and compensation expense in connection with the cancellation of
certain options of UTP and granted replacement options to purchase Uniphase
Common Stock to UTP employees in order to operate UTP Fibreoptics as a
division of UTP. In the fourth quarter of fiscal 1995, the Company
incurred charges totaling $5.4 million, primarily for acquired in-process
research and development in connection with the Company's acquisition of
UTP, and to a lesser extent from the loss on the sale of the Company's
diode laser product line. Such charges reduced net income per share for the
fourth quarter of fiscal 1995 by $0.34 and for fiscal 1995 by $0.33. There
can be no assurance that acquisitions or dispositions of businesses,
products or technologies by the Company in the future will not result in
substantial charges or other expenses that may cause fluctuations in the
Company's quarterly operating results.
Intense Industry Competition
The laser, semiconductor capital equipment, CATV and telecommunications
industries in which the Company sells its products are highly competitive.
In each of the markets it serves, the Company faces intense competition
from established competitors, many of which have substantially greater
financial, engineering, research and development, manufacturing, marketing,
service and support resources. The Company is a recent entrant into the
semiconductor capital equipment, the CATV and telecommunications
marketplaces and competes with many companies in those markets that have
substantially greater resources, including greater name recognition, a
larger installed base of products and longer standing customer
relationships. In order to remain competitive, the Company must maintain a
high level of investment in research and development, marketing, and
customer service and support. There can be no assurance that the Company
will be able to compete successfully in the laser, semiconductor capital
equipment, CATV or telecommunications industries in the future, that the
Company will have sufficient resources to continue to make such
investments, that the Company will be able to make the technological
advances necessary to maintain its competitive position or that its
products will receive market acceptance. The semiconductor capital
equipment market is frequently affected by new product introductions and
new technologies that make existing production and inspection equipment
obsolete. There can be no assurance that others will not introduce
products which compete with the Ultrapointe System or which render the
Ultrapointe System obsolete or uncompetitive based on existing or new
technologies. In addition, there can be no assurance that technological
changes or development efforts by the Company's competitors will not render
the Company's products or technologies obsolete or uncompetitive.
Dependence on Key OEM Relationships
In November 1995, the Company entered into an exclusive OEM resale
agreement with Tencor pursuant to which Tencor will distribute Ultrapointe
Systems through its worldwide distribution channels. As a result of such
agreement, the Company currently expects that Tencor will account for a
majority of Ultrapointe's net sales for the foreseeable future. On
January 14, 1997, Tencor and KLA Instruments amended a planned merger. The
Tencor and KLA merger could affect the Company's OEM agreement with Tencor.
In addition, one laser subsystems customer, the Applied Biosystems Division
of Perkin-Elmer Corporation, accounted for approximately 12% of the
Company's net sales for fiscal years, 1996, 1995, and 1994, respectively.
The loss of orders from these or other OEM relationships could have a
materially adverse effect on the Company's business and operating results.
Attract and Retain Key Personnel
The future success of the Company is dependent, in part, on its ability
to attract and retain certain key personnel. In particular, the Company's
research and development efforts are dependent on the Company being able to
hire and retain engineering staff with the requisite qualifications.
Competition in recruiting highly skilled engineering personnel is extremely
intense, and the Company is currently experiencing substantial difficulty
in identifying and hiring certain qualified engineering personnel in many
areas of its business. No assurance can be given that the Company will be
able to successfully hire such personnel at compensation levels that are
consistent with the Company's existing compensation and salary structure.
The Company's future success will also depend to a large extent on the
continued contributions of its executive officers and other key management
and technical personnel, none of whom has an employment agreement with the
Company and each of whom would be difficult to replace. The Company does
not maintain any key person life insurance policy on any of such persons.
The loss of the services of one or more of the Company's executive officers
or key personnel or the inability to continue to attract qualified
personnel could delay product development cycles or otherwise have a
material adverse effect on the Company's business and operating results.
Conflicting Patents and Intellectual Property Rights of Third Parties;
Potential Infringement Claims
The laser, semiconductor capital equipment, CATV and telecommunications
industries in which the Company sells its products are characterized by
frequent litigation regarding patent and other intellectual property
rights. Numerous patents in these industries are held by others, including
academic institutions and competitors of the Company. Such patents could
inhibit the Company's ability to develop new products for such markets.
From time to time, the Company has received notices claiming that it has
infringed third-party patents or other intellectual property rights. While
in the past licenses generally have been available to the Company where
third-party technology was necessary or useful for the development or
production of the Company's products, there can be no assurance that
licenses to third-party technology will be available on commercially
reasonable terms, if at all. Generally, a license, if granted, would
include payments by the Company of up-front fees, ongoing royalties or a
combination thereof. There can be no assurance that such royalty or other
terms would not have a significant adverse impact on the Company's
operating results. The Company is a licensee of a number of third party
technologies and intellectual property rights and is required to pay
royalties to these third party licensors on certain of its products,
including its Ultrapointe Systems and its solid state lasers. During fiscal
1996 and for the nine month period ended March 31, 1997, the Company
expensed approximately $1.3 million and $1.2 million respectively in
license and royalty fees primarily in connection with its gas laser
subsystems. In addition, there can be no assurance that third parties will
not assert claims against the Company with the Company's existing products
or with respect to future products under development by the Company. In the
event of litigation to determine the validity of any third-party claims,
such litigation could result in significant expense to the Company and
divert the efforts of the Company's technical and management personnel,
whether or not such litigation is determined in favor of the Company. In
the event of an adverse result in any such litigation, the Company could be
required to expend significant resources to develop non-infringing
technology or to obtain licenses to the technology which is the subject of
the litigation. There can be no assurance that the Company would be
successful in such development or that any such licenses would be available
to the Company. In the absence of such a license, the Company could be
enjoined from future sales of the infringing product or products. In fiscal
years 1992 and 1993, the Company incurred substantial legal expenses in
connection with a patent infringement action relating to the Company's
current gas laser subsystems brought by Spectra-Physics Lasers, Inc.
("Spectra-Physics"). While the Spectra-Physics case has since been settled,
no assurance can be given that, in the future, the Company will be able to
avoid similar actions by competitors or others or that the Company will not
be forced to initiate its own actions to protect its proprietary position.
Limited Protection of Intellectual Property
The Company's future success depends in part upon its intellectual
property, including trade secrets, know-how and continuing technological
innovation. There can be no assurance that the steps taken by the Company
to protect its intellectual property will be adequate to prevent
misappropriation or that others will not develop competitive technologies
or products. The Company currently holds 30 U.S. patents on products or
processes and certain corresponding foreign patents and has applications
for certain patents currently pending. While three patents have been issued
with respect to the Company's Ultrapointe Systems, no assurance can be
given that competitors will not successfully challenge the validity of
these patents or design products that avoid infringement of the Company's
proprietary rights with respect to its Ultrapointe Systems. There can be no
assurance that other companies are not investigating or developing other
technologies that are similar to the Company's, that any patents will issue
from any application pending or filed by the Company or that, if patents do
issue, the claims allowed will be sufficiently broad to deter or prohibit
others from marketing similar products. In addition, there can be no
assurance that any patents issued to the Company will not be challenged,
invalidated or circumvented, or that the rights thereunder will provide a
competitive advantage to the Company. Further, the laws of certain
territories in which the Company's products are or may be developed,
manufactured or sold, including Asia, Europe or Latin America, may not
protect the Company's products and intellectual property rights to the same
extent as the laws of the United States.
Dependence on Sole and Limited Source Suppliers
Various components included in the manufacture of the Company's products
are currently obtained from single or limited source suppliers. A
disruption or loss of supplies from these companies or an increase in price
of these components would have a material adverse effect on the Company's
results of operations, product quality and customer relationships. For
example, the Company obtains all the robotics, workstations and many
optical components used in its Ultrapointe Systems from Equipe
Technologies, Silicon Graphics, Inc., and Olympus Corporation,
respectively. The Company currently utilizes a sole source for the crystal
semiconductor chip sets incorporated in the Company's solid state
microlaser products and acquires its pump diodes for use in its solid state
laser products from SDL, Inc., Opto Power Corporation and GEC. The Company
also obtains lithium niobate wafers, galium arsenide wafers, specialized
fiber components and certain lasers used in its UTP and ULE products
primarily from Crystal Technology, Inc., Fujikura, Ltd., Philips Key
Modules, and Sumitomo, respectively. The Company does not have a long-term
or volume purchase agreements with any of these suppliers, and no assurance
can be given that these components will be available in the quantities
required by the Company, if at all. Further, UTP depends on relatively
specialized components and it cannot be assured that its respective
suppliers will be able to continue to meet UTP's requirements.
Difficulties in Manufacture of the Company's Products
The manufacture of the Company's products involves highly complex and
precise processes, requiring production in highly controlled and clean
environments. Changes in the Company's or its suppliers' manufacturing
process or the inadvertent use of defective or contaminated materials by
the Company or its suppliers could adversely affect the Company's ability
to achieve acceptable manufacturing yields and product reliability. In
addition, UTP has previously experienced certain manufacturing yield
problems that have materially and adversely affected both UTP's ability to
deliver products in a timely manner to its customers and its operating
results. During the fourth quarter of fiscal 1997, the Company anticipates
launching an additional production facility at UTP's Bloomfield,
Connecticut facility. No assurance can be given that the Company will be
successful in manufacturing UTP products in the future at performance or
cost levels necessary to meet its customer needs, if at all. In addition,
UTP established a transmitter production facility in Chalfont, Pennsylvania
in March 1996 and consolidated the transmitter production line previously
located in Bloomfield, Connecticut into this facility in April 1996. The
Company has no assurance that this facility will be able to deliver the
planned production qualities of transmitters to customers specifications at
the cost and yield levels required. To the extent the Company or UTP does
not achieve and maintain yields or product reliability, the Company's
operating results and customer relationships will be adversely affected.
Future Capital Requirements
The Company is devoting substantial resources for new facilities and
equipment for Uniphase Laser Enterprise and to the development of new
products for the solid state laser, semiconductor capital equipment, CATV
and telecommunications markets. Although the Company believes existing cash
balances, cash flow from operations and available lines of credit, will be
sufficient to meet its capital requirements at least through the end of
calendar year 1997, the Company may be required to seek additional equity
or debt financing to compete effectively in these markets. The timing and
amount of such capital requirements cannot be precisely determined at this
time and will depend on several factors, including the Company's
acquisitions and the demand for the Company's products and products under
development. There can be no assurance that such additional financing will
be available when needed, or, if available, will be on terms satisfactory
to the Company.
Potential Volatility of Common Stock Price
The market price of the Company's Common Stock has recently been and is
likely to continue to be highly volatile and significantly affected by
factors such as fluctuations in the Company's operating results,
announcements of technological innovations or new products by the Company
or its competitors, governmental regulatory action, developments with
respect to patents or proprietary rights, general market conditions and
other factors. Further, the Company's net revenues or operating results in
future quarters may be below the expectations of public market securities
analysts and investors. In such event, the price of the Company's Common
Stock would likely decline, perhaps substantially. In addition, the stock
market has from time to time experienced significant price and volume
fluctuations that are unrelated to the operating performance of particular
companies.
Risks Associated with International Sales
International sales accounted for approximately 28.9%, 30.3%, 24.3% and
33.1% of the Company's net revenues in fiscal years 1994, 1995, 1996 and
nine-months ended March 31, 1997 respectively, and the Company expects that
international sales will continue to account for a significant portion of
the Company's net revenues. The Company may continue to expand its
operations outside of the United States and to enter additional
international markets, both of which will require significant management
attention and financial resources. International sales are subject to
inherent risks, including unexpected changes in regulatory requirements,
tariffs and other trade barriers, political and economic instability in
foreign markets, difficulties in staffing and management and integration of
foreign operations, longer payment cycles, greater difficulty in accounts
receivable collection, currency fluctuations and potentially adverse tax
consequences. Since substantially all of the Company's foreign sales are
denominated in U.S. dollars, the Company's products may also become less
price competitive in countries in which local currencies decline in value
relative to the U.S. dollar. The Company's business and operating results
may also be materially and adversely affected by lower sales levels which
typically occur during the summer months in Europe and certain other
overseas markets. Furthermore, the sales of many of the Company's OEM
customers are dependent on international sales and, consequently, this
further exposes the Company to the risks associated with such international
sales.
Issuance of Preferred Stock; Potential Anti-Takeover Effects of Delaware
Law
The Board of Directors has the authority to issue up to 1,000,000 shares
of undesignated Preferred Stock and to determine the powers, preferences
and rights and the qualifications, limitations or restrictions granted to
or imposed upon any wholly unissued shares of undesignated Preferred Stock
and to fix the number of shares constituting any series and the designation
of such series, without any further vote or action by the Company's
shareholders. The Preferred Stock could be issued with voting, liquidation,
dividend and other rights superior to those of the holders of Common Stock.
The issuance of Preferred Stock under certain circumstances could have the
effect of delaying, deferring or preventing a change in control of the
Company.
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law prohibiting publicly-held Delaware corporations
from engaging in business combinations with certain stockholders for a
specified period of time without the approval of substantially all of its
outstanding voting stock. Such provisions could delay or impede the removal
of incumbent directors and could make more difficult a merger, tender offer
or proxy contest involving the Company, even if such events could be
beneficial, in the short term, to the interests of the stockholders. In
addition, such provisions could limit the price that certain investors
might be willing to pay in the future for shares of the Company's Common
Stock. The Company's Certificate of Incorporation and Bylaws contain
provisions relating to the limitations of liability and indemnification of
its directors and officers, dividing its Board of Directors into three
classes of directors serving three-year terms and providing that its
stockholders can take action only at a duly called annual or special
meeting of stockholders. These provisions also may have the effect of
deterring hostile takeovers or delaying changes in control or management of
the Company.
SECURITIES TO BE OFFERED
This prospectus relates to the offer and sale from time to time by the
holder (the "Selling Stockholder") of up to 665,568 shares (the "Shares")
of Common Stock of the Company. The Company is registering the Shares
pursuant to a Common Stock Purchase Agreement dated as of November 20, 1995
by and between the Company and the Selling Stockholder, to provide the
Selling Stockholder with freely tradable securities. The registration of
the Shares does not necessarily mean that any of the Shares will be offered
and sold by the holder thereof.
USE OF PROCEEDS
The Company will not receive any of the proceeds from the sale of the
Shares by the Selling Stockholder but has agreed to bear certain expenses
of registration of the Shares under Federal and state securities laws.
DESCRIPTION OF THE COMPANY'S CAPITAL STOCK
The authorized capital stock of the Registrant consists of 20,000,000
shares of Common Stock, $.001 par value per share, and 1,000,000 shares of
Preferred Stock, $.001 par value per share. As of April 30, 1997, there
were 16,678,086 shares of Common Stock issued and outstanding and no shares
of Preferred Stock issued and outstanding.
Common Stock
The holders of Common Stock are entitled to one vote for each share held
of record on all matters submitted to a vote of the stockholders. Holders
of Common Stock do not have cumulative voting rights in the election of
directors. Subject to preferences that may be granted to any then
outstanding Preferred Stock, holders of Common Stock are entitled to
receive ratably such dividends as may be declared by the Board of Directors
out of funds legally available therefor as well as any distributions to the
stockholders. In the event of a liquidation, dissolution or winding up of
the Company, holders of Common Stock are entitled to share ratably in all
assets of the Company remaining after payment of liabilities and the
liquidation preference of any then outstanding Preferred Stock. Holders of
Common Stock have no preemptive or other subscription or conversion rights.
There are no redemption or sinking fund provisions applicable to the Common
Stock. All outstanding shares of Common Stock are, and all shares of
Common Stock to be outstanding upon completion of the offering will be,
validly issued, fully paid and nonassessable.
Preferred Stock
The Company's Board of Directors has the authority, without further
action by the stockholders, to issue up to 1,000,000 shares of Preferred
Stock in one or more series and to fix the rights, preferences, privileges
and restrictions thereof, including dividend rights, conversion rights,
voting rights, terms of redemption, liquidation preferences, sinking fund
terms and the number of shares constituting any series or the designation
of such series, without any further vote or action by the stockholders.
The issuance of Preferred Stock could adversely affect the voting power of
holders of Common Stock and the likelihood that such holders will receive
dividend payments and payments upon liquidation and could have the effect
of delaying, deterring or preventing a change in control of the Company.
The Company has no present plan to issue any shares of Preferred Stock.
Delaware Anti-Takeover Law and Certain Charter Provisions
Anti-Takeover Law
The Company is subject to the provisions of Section 203 of the Delaware
General Corporation Law. In general, Section 203 prohibits a publicly-held
Delaware corporation from engaging in a "business combination" with an
"interested stockholder" for a period of three years after the date of the
transaction in which the person became an interested stockholder, unless
the business combination is approved in a prescribed manner or unless the
interested stockholder acquired at least 85% of the corporation's voting
stock (excluding shares held by certain designated stockholders) in the
transaction in which it became an interested stockholder. For purposes of
Section 203, a "business combination" includes a merger, asset sale or
other transaction resulting in a financial benefit to the interested
stockholder. Subject to certain expenses, an "interested stockholder" is a
person who, together with affiliates and associates, owns, or within the
previous three years did own, 15% or more of the corporation's voting
stock.
Limitation of Director and Officer Liability
The Company's Certificate of Incorporation and Bylaws contain certain
provisions relating to the limitation of liability and indemnification of
directors and officers. The Company's Certificate of Incorporation
provides that directors of the Company may not be held personally liable to
the Company or its stockholders for monetary damages for a breach of
fiduciary duty, except for liability (i) for any breach of the director's
duty of loyalty to the Company or its stockholders, (ii) for acts or
omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the Delaware General
Corporation Law, relating to prohibited dividends, distributions and
repurchases or redemptions of stock, or (iv) for any transaction from which
the director derives an improper benefit. However, such limitation does
not limit the availability of non-monetary relief in any action or
proceeding against a director. In addition, the Company's Certificate of
Incorporation and Bylaws provide that the Company shall indemnify its
directors and officers to the fullest extent authorized by Delaware law.
Classified Board of Directors
The Company's Certificate of Incorporation provides that, so long as the
Board of Directors consists of more than two directors, the Board of
Directors will be divided into three classes of directors serving staggered
three-year terms. As a result, approximately one-third of the Company's
Board of Directors will be elected each year.
No Stockholder Action by Written Consent; Special Meetings
The Company's Certificate of Incorporation provides that stockholders can
take action only at a duty called annual or special meeting of
stockholders. Stockholders of the Company are not permitted to take action
by written consent in lieu of a meeting. In addition, the Certificate of
Incorporation provides that, subject to the rights of the holders of any
stock having a preference over the Common Stock as to dividends or
liquidation, special meetings of the stockholders can be called only by the
Board of Directors, the Chairman of the Board or the Chief Executive
Officer of the Company. Stockholders are not permitted to call a special
meeting or to require the Board of Directors to call a special meeting of
stockholders. These provisions may have the effect of deterring hostile
takeovers or delaying changes in control or management of the Company.
Transfer Agent and Registrant
The transfer agent and registrar for the Company's Common Stock is
Chemical Trust Company of California, San Francisco, California.
SHARES AVAILABLE FOR FUTURE SALE
As of April 30, 1997, there were 16,678,086 shares of Common Stock issued
and outstanding and no shares of Preferred Stock issued and outstanding.
As of April 30, 1997, the Company had reserved for issuance under the
Company's Amended and Restated 1993 Flexible Stock Incentive Plan and under
the Company's 1996 Non-Qualified Stock Option Plan (collectively, the
"Plans") 2,125,000 shares and 780,000 shares of Common Stock, respectively.
In certain circumstances, the holder of Shares may elect to sell its
Shares in accordance with the exemptions provided by Rule 144 under the
Securities Act rather than pursuant to this Prospectus. In general, under
Rule 144, a person (or persons whose shares are aggregated in accordance
with the Rule) who has beneficially owned his or her shares for at least
one year, including any such persons who may be deemed "affiliates" of the
Company (as defined in the Securities Act), would be entitled to sell
within any three-month period a number of shares that does not exceed the
greater of 1% of the then outstanding number of shares or the average
weekly trading volume of the shares during the four calendar weeks
preceding each such sale. After shares are held for two years, a person
who is not deemed an "affiliate" of the Company is entitled to sell such
shares under Rule 144 without regard to the volume limitations described
above. Sales of shares by affiliates will continue to be subject to the
volume limitations. As defined in Rule 144, an "affiliate" of an issuer is
a person that directly or indirectly, through the use of one or more
intermediaries, controls, is controlled by, or is under common control
with, such issuer.
As of April 30, 1997, pursuant to the Plans, options to purchase an
aggregate of 2,114,660 shares of Common Stock have been granted or
authorized to be granted to the Company's directors, officers and
employees.
No prediction can be made as to the effect, if any, that future sales of
shares or the availability of shares for future sale will have on the
market price prevailing from time to time. Sales of substantial amounts of
shares (including shares issued upon the exercise of options), or the
perception that such sales could occur, could adversely affect the
prevailing market price of the shares.
SELLING STOCKHOLDER
The following table sets forth certain information known to the Company
with respect to the beneficial ownership of the Selling Stockholder as of
April 30, 1997, as to (i) the number of shares of Common Stock and
percentage of outstanding shares of Common Stock beneficially held by the
Selling Stockholder, (ii) the maximum number of Shares that may be offered
pursuant to the Prospectus, (iii) the number of shares of Common Stock and
percentage of outstanding shares of Common Stock that will be held by the
Selling Stockholder after the sale of the Shares assuming all shares are
sold by the Selling Stockholder. The registration of the Shares does not
necessarily mean that any of the Shares will be offered and sold by the
holder thereof.
Number of Shares Number of Shares
Beneficially Owned Number of Beneficially Owned
Prior to Offering Shares After Offering
Number Percentage to Be Sold Number Percentage
Selling
Stockholder
Tencor 665,568 4.0% 665,568 0 *
Instruments(1)____________
*less than 1%
(1) Tencor Instruments is a wholly-owned subsidiary of KLA-Tencor
Corporation. Tencor Instruments' address is 333 Octavius Street, Santa
Clara, CA 95054.
LEGAL MATTERS
The validity of the Shares offered hereby will be passed upon for the
Company by Morrison & Foerster LLP, Palo Alto, California.
EXPERTS
The consolidated financial statements of Uniphase incorporated by
reference in Uniphase's Annual Report on Form 10-K for the fiscal year
ended June 30, 1996, have been audited by Ernst & Young LLP, independent
auditors, as set forth in their report thereon incorporated by references
therein and incorporated by reference herein. Such consolidated financial
statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
MATERIAL CHANGES
The Company has reached an agreement in principle under which KLA-Tencor
will become the exclusive distributor for certain products developed and
manufactured by Ultrapointe, a subsidiary of the Company, including the
Laser Imaging Systems used to analyze defects on semiconductor wafers and
photomasks during the manufacturing process as well as automatic defect
classification software products. The parties' obligations under the agreement
in principle are subject to negotiation, the signing of definitive
agreements and normal and customary closing conditions. As a result, there
can be no assurance that any definitive agreement will be reached or if
reached, will be consummated on the terms presently contemplated.
No dealer, sales
representative, or any other
person has been authorized to give
any information or to make any
representations in connection with
this offering other than those
contained in this Prospectus, and, 665,568 Shares
if given or made, such information
or representations must not be
relied upon as having been
authorized by the Company or the
Underwriters. This Prospectus does UNIPHASE CORPORATION
not constitute an offer to sell or
a solicitation of any offer to buy
any securities other than the
shares of Common Stock to which it
relates or an offer to, or a
solicitation of, any person in any Common Stock
jurisdiction where such an offer
or solicitation would be unlawful.
Neither the delivery of this
Prospectus nor any sale made
hereunder shall, under any
circumstances create an
implication that there has been no __________________________
change in the affairs of the
Company or that information PROSPECTUS
contained herein is correct as of __________________________
any time subsequent to the date
hereof.
_____________
TABLE OF CONTENTS
Page
Available Information 2
Incorporation of Certain
Documents by Reference 2
The Company 4
Risk Factors 5
Securities To Be Offered 12
Use of Proceeds 12
Description of the Company's
Capital Stock 12
Shares Available for Future , 1997
Sale 14
Selling Stockholder 14
Legal Matters 15
Experts 15
__________
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution
The following table sets forth the costs and expenses, other than
underwriting discounts and commissions, payable by the Company in
connection with the sale of Common Stock being registered. All amounts are
estimates except the SEC registration fee, NASD filing fee and Nasdaq
listing fee.
Amount To
Be Paid
SEC registration fee $ 9,416
Nasdaq listing fee 13,312
Legal fees and expenses 7,500
Accounting fees and expenses 4,000
Miscellaneous expenses 1,772
--------
Total $36,000
========
Item 15. Indemnification of Directors and Officers
The indemnification and liability of the Company's directors and officers
are governed by Delaware law.
Under Section 145 of the General Corporation Law of the State of
Delaware, the Company has broad powers to indemnify its directors and
officers against liabilities that may incur in such capacities, including
liabilities under the Securities Act of 1933, as amended (the "Securities
Act"). The Company's Bylaws also provide for mandatory indemnification of
its directors and executive officers, and permissive indemnification of its
employees and agents, to the fullest extent permissible under Delaware law.
The Company's Certificate of Incorporation provides that the liability of
its directors for monetary damages shall be eliminated to the fullest
extent permissible under Delaware law. Pursuant to Delaware law, this
includes elimination of liability for monetary damages for breach of the
directors' fiduciary duty of care to the Company and its stockholders.
These provisions do not eliminate the directors' duty of care and, in
appropriate circumstances, equitable remedies such as injunctive or other
forms of non-monetary relief will remain available under Delaware law. In
addition, each director will continue to be subject to liability for breach
of the director's duty of loyalty to the Company, for acts of omissions not
in good faith or involving intentional misconduct, for knowing violations
of law, for any transaction from which the director derived an improper
personal benefit, and for payment of dividends or approval of stock
repurchases or redemptions that are unlawful under Delaware law. The
provision also does not affect a director's responsibilities under any
other laws, such as the federal securities laws or state or federal
environmental laws.
The Company has entered into agreements with its directors and certain of
its executive officers that require the Company to indemnify such persons
against expenses, judgments, fines, settlements and other amounts actually
and reasonably incurred (including expenses of a derivative action) in
connection with any proceeding, whether actual or threatened, to which any
such person may be made a party by reason of the fact that such person is
or was a director or officer of the Company or any of its affiliated
enterprises, provided such person acted in good faith and in a manner such
person reasonably believed to be in or not opposed to the best interests of
the Company and, with respect to any criminal proceeding, had no reasonable
cause to believe his or her conduct was unlawful. The indemnification
agreement also sets forth certain procedures that will apply in the event
of a claim for indemnification thereunder.
The Company has obtained a policy of directors' and officers' liability
insurance that insures the Company's directors and officers against the
cost of defense, settlement or payment of a judgment under certain
circumstances.
The Underwriting Agreement provides for cross-indemnification of the
Underwriters and the Company and its officers and directors for certain
liabilities arising under the Securities Act or otherwise.
Item 16. Exhibits
(a) Exhibits
No. Description
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Ernst & Young LLP, independent
auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-3)
Item 17. Undertakings
Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons
of the Company pursuant to the foregoing provisions, or otherwise, the
Company has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in
the Securities Act, and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment
by the Company of expenses incurred or paid by a director, officer or
controlling person of the Company in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling
person in connection with the securities being registered, the Company
will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the
question of whether such indemnification by it is against public policy as
expressed in the Securities Act and will be governed by the final
adjudication of such issue.
The undersigned Company hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of Prospectus filed as part of this
Registration Statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the Company pursuant to Rule 424(b)(1) or (4), or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of Prospectus shall
be deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) For the purpose of determining liability under the Securities Act,
each filing of the Company's annual report pursuant to Section 13(a) or
Section 15(d) of the Securities Exchange Act of 1934 (and, where
applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference in the Registration Statement shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial
bona fide offering thereof.
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused
this Registration Statement to be signed on its behalf by the undersigned,
thereunto duly authorized, in the City of San Jose, State of California, on
the 6th day of May, 1997.
UNIPHASE CORPORATION
By:/s/ KEVIN N. KALKHOVEN
Kevin N. Kalkhoven
President, Chief Executive Officer
and Chairman of the Board of Directors
POWER OF ATTORNEY
We, the undersigned officers and directors of Uniphase Corporation, do
hereby constitute and appoint Kevin N. Kalkhoven and Dan E. Pettit, and
each of them, our true and lawful attorneys-in-fact and agents, each with
full power of substitution and resubstitution, for each of us and in each
of our names, places and stead, in any and all capacities, to sign any and
all amendments to this Registration Statement, and to file the same, with
exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact
and agents, and each of them, full power and authority to do and perform
each and every act and thing requisite or necessary to be done in and about
the premises, as fully to all intents and purposes as each of us might or
could do in person, hereby ratifying and confirming all that each of said
attorneys-in-fact and agents, or his/her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
this Registration Statement has been signed by the following persons in the
capacities and on the dates indicated:
Signature Title Date
/s/ KEVIN N. KALKHOVEN President, Chief May 27, 1997
Executive Officer and
Kevin N. Kalkhoven Chairman of the Board
of Directors
(Principal Executive
Officer)
/s/ DAN E. PETTIT Vice President, May 27, 1997
Dan E. Pettit Finance, Chief
Financial Officer
and Secretary
(Principal Financial
and
Accounting Officer)
/s/ WILLIAM B. BRIDGES, Ph.D. Director May 27, 1997
William B. Bridges,
Ph.D.
/s/ ROBERT C. FINK Director May 27, 1997
Robert C. Fink
/s/ CATHERINE P. LEGO Director May 27, 1997
Catherine P. Lego
/s/ STEPHEN C. JOHNSON Director May 27, 1997
Stephen C. Johnson
/s/ ANTHONY R. MULLER Director May 27, 1997
Anthony R. Muller
/s/ WILSON SIBBETT, Ph.D. Director May 27, 1997
Wilson Sibbett, Ph.D.
INDEX TO EXHIBITS
Exhibit
Number Exhibits
5.1 Opinion of Morrison & Foerster LLP
23.1 Consent of Ernst & Young LLP,
independent auditors
23.2 Consent of Counsel (included in Exhibit 5.1)
24.1 Power of Attorney (see page II-3)
Exhibit 5.1
May 27, 1997
Uniphase Corporation
*163 Baypointe Parkway
San Jose, California 95134
Ladies and Gentlemen:
We are acting as counsel to Uniphase Corporation, a Delaware
corporation (the "Company"), in connection with the registration of 665,568
shares of common stock (the "Shares") of the Company, par value $.001 per
share ("Common Stock"), that may be offered and sold from time to time by
the certain holder of such shares. The Shares are the subject of a
Registration Statement (the "Registration Statement") filed by the Company
on Form S-3 under the Securities Act of 1933, as amended.
In our capacity as your counsel in connection with such registration,
we are familiar with the proceedings taken by the Company in connection
with the authorization and issuance of the Shares. In addition, we have
made such legal and factual examinations and inquiries, including an
examination of originals or copies certified or otherwise identified to our
satisfaction of such documents, corporate records and instruments, as we
have deemed necessary or appropriate for purposes of this opinion.
Based upon and subject to the foregoing and to the assumptions,
limitations and conditions set forth herein, we are of the opinion that the
Shares as described in the Registration Statement have been validly issued,
fully paid and non-assessable.
We consent to the use of this opinion as an exhibit to the
Registration Statement and further consent to the reference to us under the
heading "Legal Matters" in the Registration Statement, the Prospectus
constituting a part thereof and any amendments thereto.
Very truly yours,
/s/ Morrison & Foerster LLP
EXHIBIT 23.1
CONSENT OF ERNST & YOUNG LLP, INDEPENDENT AUDITORS
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement (Form S-3) and the related Prospectus of Uniphase
Corporation for the registration of 665,568 shares of its common stock and
to the incorporation by reference therein of our report dated July 30,
1996, with respect to the consolidated financial statements of Uniphase
Corporation incorporated by reference in its Annual Report (Form 10-K) for
the year ended June 30, 1996 and the related financial statement schedule
included therein, filed with the Securities and Exchange Commission.
/s/ Ernst and Young LLP
San Jose, California
May 27, 1997